Abbott: Non-discrimination ordinance could see legal challenge

The non-discrimination ordinance passed by City Council violates both the First Amendment and Texas Constitution and could be subject to a legal challenge, Texas Attorney General Greg Abbott said Friday.

The ordinance — which adds protections to the city code for sexual orientation, gender identification and veteran status — was passed by an 8-3 vote Thursday after hours of testimony from residents expressing either support or opposition.

Speaking to reporters Friday, Abbott — who is considered the frontrunner in the 2014 gubernatorial race — said a provision in the ordinance that prohibits officeholders from discriminating against those groups while operating in their official capacity as lawmakers would constitute a religious test for holding public office, a practice prohibited by the Texas Constitution.

He used a hypothetical in which a lawmaker expressed support for the state’s ban on same-sex marriage.

“If someone says, ‘we’re going to stand on the law,’ they would be guilty of violating that San Antonio ordinance. That’s just nonsensical,” Abbott said.

District 1 Councilman Diego Bernal said that’s an incorrect statement about the ordinance. He said the provision Abbott referred to would prohibit public officials from taking discriminatory action against protected classes through their official capacity, not prohibit them from making public or private statements against those parties.

“If you have a gay applicant for zoning who has met all of the legal requirements for the zoning application, one cannot say, ‘I don’t want a gay-owned business in this area and therefore I am going to vote against this applicant for that reason,’” Bernal said.

The councilman said he is surprised that Abbott has not challenged any of those ordinances, which passed during his time in office, and chalked the attorney general’s statements up to campaign rhetoric.

The attorney general said he did not know if his office would challenge the ordinance because the state is weighing whether it has standing to sue. Abbott also did not know if he would issue a similar challenge to other non-discrimination ordinances throughout the state.